BETZOLD v. TOWN OF BABYLON

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Supreme Court, Appellate Division, Second Department, New York.

Matthew BETZOLD, etc., et al., respondents, v. TOWN OF BABYLON, appellant.

Decided: May 31, 2005

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, REINALDO E. RIVERA, and ROBERT A. SPOLZINO, JJ. Kenneth M. Seidell, Smithtown, N.Y., for appellant. Barton, Barton & Plotkin, LLP, New York, N.Y. (Elizabeth Mark Meyerson of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Berler, J.), dated February 19, 2004, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

On May 16, 2000, the infant plaintiff was injured when the front tire of his bicycle hit a pothole located five feet north of his neighbor's driveway entrance at 84 West 12th Street, in Deer Park. The infant plaintiff and his mother commenced this action against the defendant, Town of Babylon, claiming, inter alia, that the Town caused or created the defective, dangerous condition.   The Town moved for summary judgment dismissing the complaint.   The Supreme Court denied the motion and we reverse.

The Town made a prima facie showing of entitlement to judgment as a matter of law establishing that it did not receive the requisite prior written notice of the alleged defective condition.   Thus, it was incumbent upon the plaintiffs to submit competent evidence that the Town affirmatively created the defect (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Schuman v. City of New York, 304 A.D.2d 643, 757 N.Y.S.2d 608;  ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 684 N.Y.S.2d 258). Under the circumstances, the plaintiffs failed to raise a triable issue of fact as to the Town's negligence, and thus, the Town was entitled to summary judgment dismissing the complaint (see Woodard v. City of New York, 262 A.D.2d 405, 406, 692 N.Y.S.2d 407;  ITT Hartford Ins. Co. v. Village of Ossining, supra ).

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